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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Pacheco, 21 Mass.App.Ct.
565 (1986)
Appeals Court of Massachusetts,
Argued
Decided
Further Appellate Review Denied
Michael J. Traft, Asst.
Dist. Atty. (William M. White, Jr., Legal
Asst. to the Dist. Atty., with him) for Com.
James E. McCall,
Before ARMSTRONG, CUTTER and FINE, JJ.
CUTTER, Justice.
Pacheco
had been indicted for possessing on
The motion
judge (in a memorandum accompanying his allowance of the motion to suppress the
items found in the search) treated the issue before him as "whether the statements
... in the affidavit supported the inference that the ... property [sought]
could reasonably have been expected to be located in the places specified"
in Officer Driscoll's affidavit. The
judge correctly concluded "that the affidavit on its face established
probable cause for the search of the first floor apartment." He ruled, however, that the affidavit
contained nothing which warranted "more than a vague suspicion that
controlled substances were being concealed in the common basement of this three‑family
house."
For this
conclusion, the judge relied on
Commonwealth v. Erickson, 14 Mass.App. 501, 504‑506,
440 N.E.2d 1190 (1982). The present case
is distinguishable from the Erickson
case on its facts. In the present case,
the affidavit directed attention to only one apartment (said in the affidavit
to be
occupied by one Paccino) (FN1) in a three‑story apartment
structure. The suspicious transactions,
credibly reported by an informant previously proved reliable, took place
principally in that ground floor apartment.
The warrant directed only a search (as requested in the application for
the warrant) "in certain rooms, closets, storage areas, and cellar in the
1st floor three story wooden dwelling" here under discussion. In the
Erickson case, the building involved was a vertically divided multiple
dwelling structure, in which firearms (the subject of that search) in the
possession of some individuals and the individuals themselves had not been
connected by the affidavit with Erickson's second floor apartment or with
Erickson himself. It was not shown that
any individuals seen with firearms had access to that apartment.
[1] The
present motion judge's conclusion that there was probable cause for the search
of the first floor apartment necessarily
[21 Mass.App.Ct. 567] implied satisfaction of the "two‑pronged" test of Spinelli v.
United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969), and Aguilar v. Texas,
378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964). See Commonwealth v. Upton, 394 Mass. 363, 476 N.E.2d 548 (1985), and Commonwealth v. Saleh,
396 Mass. 406, 407, 486 N.E.2d 706 (1985).
Officer Driscoll's affidavit established sufficiently both the proved
reliability and credibility of the informant and existence of probable cause to
search the apartment. Photographs of the
cellar area and of the building introduced in evidence at the hearing on the
motion to suppress showed the nature of the structure itself and the presence
in the cellar of utility meters and heaters to which all the tenants of each of
the several apartments certainly would be entitled to have common access.
We think
the motion judge viewed the affidavit and the magistrate's decision to issue
the warrant (based on the affidavit) in hypertechnical
fashion, see Commonwealth v. Atchue, 393 Mass. 343, 345‑349, 471 N.E.2d 91
(1982), inconsistent with Massachusetts decisions like Commonwealth v. Cefalo, 381 Mass. 319,
324‑330, 409 N.E.2d 719 (1980), and
Commonwealth v. Cinelli, 389 Mass. 197, 213‑214,
449 N.E.2d 1207 (1983). See also Commonwealth v. Burt, 393 Mass. 703,
715‑716, 473 N.E.2d 683 (1985); Commonwealth v. Saleh,
396 Mass. at 412, 486 N.E.2d 706, and cases cited; Commonwealth v. Germain, 396 Mass. 413, 418, 486 N.E.2d 693
(1985). Giving the affidavit "a
common sense, non‑technical approach," the magistrate reasonably
could infer that any cellar area close to the first floor apartment (and to
which its occupants had access) might be used by Pacheco or any other occupant
of the apartment to store the cocaine observed by the informant. (FN2)
As
probable cause existed to search Pacheco's apartment, we conclude that probable
cause had been established to search any reasonably related cellar area of that
apartment as a dwelling to the extent, at least, that any such search involved
no significant[21 Mass.App.Ct. 568] invasion of any part of the cellar where
tenants of other apartments had a reasonable expectation of privacy or of
exclusive occupancy. The probable cause
established by Officer Driscoll's affidavit related to Pacheco's apartment
without regard to a particular room. For
example, the affidavit provided no special cause to search the bathroom or
kitchen. Yet, surely, probable cause
extended to a search of each of those rooms.
The same is true of the cellar because, given the realities of modern
city multiple dwellings, the occupants of each apartment typically have access,
either common or exclusive, to at least parts of the cellar.
[2] The facts of the present case resemble in
certain respects the situation discussed in
Commonwealth v. Thomas, 358 Mass. 771, 772‑775, 267 N.E.2d 489
(1971). (FN3) There police officers, acting upon advice
from an informant, went to premises where drug distribution was suspected. The defendant, Thomas, occupied one of two
apartments on the third floor. The
officers had no search warrant and made no attempt to obtain one. A rear cellar door was "open an inch or
so." The officers pushed it open
and entered the cellar without permission from any person. In the ceiling of what was plainly a cellar
used by all tenants of the building, they found in a somewhat exposed area, in
a paper bag, cardboard boxes containing packages of heroin. They replaced these items in the ceiling and
watched the cellar area. When Thomas
entered the cellar a few hours later and went to the hiding place he was
arrested. His motion to suppress the
contraband items was denied. This action
was sustained by [21 Mass.App.Ct. 569]
the Supreme Judicial Court, which held (at 774‑775, 267 N.E.2d 489) that
entering the cellar, although a trespass, was at most a trespass against the
building owner. "It did not invade
an area within the 'curtilage' of Thomas's
apartment.... In a modern urban multi‑family
apartment house, the area within the 'curtilage' is
necessarily much more limited than in the case of a rural dwelling subject to
one owner's control.... In such an
apartment house, a tenant's dwelling [i.e., as a part of its curtilage] cannot reasonably be said to extend beyond his
own apartment and perhaps any separate areas subject to his exclusive
control." 358 Mass. at 774‑75,
267 N.E.2d 489. (FN4) To deny the authority of a magistrate
expressly to allow by warrant a search of any area of a cellar to which the
occupant of an apartment has either exclusive access or access shared with
others, where probable cause to search the apartment has been established,
would present a serious obstacle to proper law enforcement. It would immunize, in effect, from search an
important area where an occupant of that apartment could conceal contraband or
other objects of a proper search. This
would greatly reduce the incentive to the police to follow the preferred route
of seeking a warrant. United States v. Ventresca,
380 U.S. 102, 108‑109, 85 S.Ct. 741, 745‑746,
13 L.Ed.2d 684 (1965).
The order
granting the motion to suppress is reversed and the matter is remanded to the
Superior Court for trial.
So ordered.
(FN1.) No question appears to have been raised
at trial and none was raised before us that Pacheco was not the Paccino referred to in the affidavit.
(FN2.)
When the search was made, cocaine was found in a padlocked tool box concealed
in the ceiling of the cellar. A key
which fitted the padlock was taken from Pacheco, who admitted that he owned the
tool box and the key that opened it.
When first seen at the time of the search, Pacheco was installing a
radio in his automobile in a parking lot adjacent to 8 Lyford Street and was
not in the first floor apartment.
(FN3.)
The Thomas case has been cited with
apparent approval in later authorities.
See e.g., Commonwealth v. Battle,
365 Mass. 472, 475 n. 3, 313 N.E.2d 554 (1974); Commonwealth v. Dinnall, 366 Mass. 165, 167, 314 N.E.2d 903 (1974);
Commonwealth v. Albert, 391 Mass. 853, 862, 466 N.E.2d 78 (1984);
Commonwealth v. Frazer, 10 Mass.App. 429,
432‑433, 408 N.E.2d 884 (1980); United States v. Pagan, 537 F.2d. 554,
557‑558 (1st Cir.1976); United States v. Arboleda,
633 F.2d. 985, 992 (2d Cir.1980), cert. denied 450 U.S. 917, 101 S.Ct. 1362, 67 L.Ed.2d 343 (1981). Compare
Commonwealth v. Hall, 366 Mass. 790, 794‑795, 323 N.E.2d 319 (1975)
(separate area near apartment of building owner and under his control not
within the Thomas case principle);
Commonwealth v. Pietrass, 392 Mass. 892,
899 n. 11, 467 N.E.2d 1368 (1984), (whether a porch within the "curtilage" of premises a matter of fact to be
determined). See for cases dealing
generally with similar situations 1 & 2 La Fave,
Search and Seizure, §§ 2.3, 2.4, 4.5(b) (1978 & Supps.1985).
(FN4.) The Thomas case suggests that the search of
the cellar as a common area in the present case might not have required a
warrant, because it was not shown to have been an area to which Pacheco had
exclusive access and thus not within the "curtilage"
of his apartment. We approve,
nevertheless, the prudent action of the police in seeking a warrant. The cellar was closely related to the
occupancy of Pacheco's apartment and access to it was an incident of the
occupancy even if it was not within its curtilage. Because of his access to the cellar it was a
place in which he might store contraband if he was prepared (as he proved to
be) to run the risk that others would find the drugs before he needed them.